12 FLRA No. 140
U.S. NAVAL SPACE SURVEILLANCE
SYSTEMS, DAHLGREN, VIRGINIA
Respondent
and
Case No. 3-CA-1603
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2096
Charging Party
U.S. NAVAL SURFACE WEAPONS CENTER,
DAHLGREN, VIRGINIA
Respondent
and
Case No. 3-CA-1778
9 FLRA No. 30
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2096
Charging Party
DECISION AND ORDER UPON RECONSIDERATION
On March 17, 1983, the Authority issued an Order granting the motion
for reconsideration of its decision in U.S. Naval Space Surveillance
Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center,
Dahlgren, Virginia, 9 FLRA No. 30 (1982), which had been filed by the
Department of the Navy (Navy) on behalf of the U.S. Naval Surface
Weapons Center, Dahlgren, Virginia (Weapons Center), the Respondent in
Case No. 3-CA-1778. In granting the Navy's motion for reconsideration,
the Authority stayed its order in 9 FLRA No. 30 pending completion of
the proceeding upon reconsideration, and granted leave to the parties to
file statements of position on the issue of whether Respondent Weapons
Center violated section 7131(d) of the Statute when it refused to
bargain with the Union concerning a proposal to grant official time to a
Weapons Center employee for representing the Union in contract
negotiations with another employee. /1/ The Navy (on behalf of
Respondent Weapons Center), the Charging Party, and the General Counsel
filed statements of position.
In its Decision and Order with respect to Case No. 3-CA-1778, /2/ the
Authority found in pertinent part that the Respondent Weapons Center
(whose agent, Resio, also was the representative and spokesman for
USNSSS) violated the Statute when it refused to bargain with the Union
under section 7131(d) of the Statute concerning a proposal to grant
official time to a Weapons Center employee, Union Executive Vice
President Ezra Green, for representing the Union in contract
negotiations with another employer (USNSSS). Further, the Authority
dismissed an allegation that the Weapons Center had violated section
7131(a) of the Statute by refusing to grant official time to Green for
such purposes. The Authority noted that, under section 7131(a),
entitlement to official time accrues only to an employee within the unit
involved in the negotiations. The Authority's findings and conclusions
in this latter regard are not at issue herein. The issue to be decided
now is whether an employer is required to negotiate under section
7131(d) concerning the authorization of official time for its
employee(s) to represent the Union in contract negotiations involving
employees of another employer.
In reaching its conclusion which is here at issue, the Authority
relied upon an earlier decision in Department of Defense, Department of
the Navy, Polaris Missile Facility Atlantic, Charleston, South Carolina,
6 FLRA No. 67 (1981), and a previous Interpretation and Guidance, 7 FLRA
No. 105 (1982). For the reasons set forth below, it is concluded that
these cases are not controlling herein, and that the purposes and
policies of the Statute will best be effectuated by dismissing in its
entirety the complaint in Case No. 3-CA-1778.
In Polaris Missile Facility Atlantic, an activity was alleged to have
unilaterally changed existing conditions of employment by denying
official time to one of its employees, the president of the union which
exclusively represented a unit of the activity's employees, for the
purpose of representing employees in a unit of exclusive recognition at
a separate activity (the Naval Weapons Station). The Authority
concluded, in agreement with the Judge, that the evidence failed to
establish the existence of a past practice whereby the activity
knowingly and consistently granted official time to its employees to
represent employees at other activities. Accordingly, the complaint was
dismissed on that basis. The complaint did not allege that the union
had been denied the right to negotiate for such official time under
section 7131(d) of the Statute, and the Authority did not consider
whether section 7131(d) would have required the activity to negotiate
with respect thereto.
Similarly, in its Interpretation and Guidance, supra, the Authority
did not address the issue presented herein. Rather, the question was
whether section 7131(a) of the Statute applies to the negotiation of a
local agreement which supplements a national or controlling (master)
agreement. In concluding that section 7131(a) does not entitle
employees to official time for negotiating local supplemental
agreements, the Authority emphasized that such entitlement to official
time only flows to an employee representing an exclusive representative
in the negotiation of a collective bargaining agreement "affecting
employees in the appropriate unit." (Emphasis in original.) The
Authority added that when the parties at the level of exclusive
recognition agree to authorize the creation of local supplemental
agreements affecting employees in the appropriate unit, they "remain
empowered under section 7131(d) of the Statute to negotiate official
time for employees representing the exclusive representative at the
local level. . . . "
By contrast, the Weapons Center and the Charging Party herein were
not engaged at all in the negotiation of a collective bargaining
agreement involving conditions of employment affecting any Weapons
Center employee. Only USNSSS, a completely separate activity, was
engaged in negotiations with the Union, and those negotiations
consequently concerned only conditions of employment of USNSSS
employees. Any agreement reached in such negotiations would not apply
to or affect Weapons Center employees in any way. The Authority now
concludes, consistent with the purposes and policies of the Statute as
discussed herein, that the Weapons Center had no obligation under
section 7131(d) of the Statute to negotiate with the Charging Party
concerning the authorization of official time for one of its employees
to represent the Union in a different collective bargaining unit engaged
in collective bargaining with a different activity. /3/
Congress has specifically declared in section 7101(a)(1) of the
Statute that it is "the right of employees to organize, bargain
collectively, and participate through labor organizations of their own
choosing in decisions which affect them (that) (A) safeguards the public
interest, (B) contributes to the effective conduct of public business,
and (C) facilitates and encourages the amicable settlements of disputes
between employees and their employers involving conditions of
employment. . . . " /4/ Requiring an employer to bargain on demand with
regard